Publishing Agreements Explained: Representations, Warranties & Indemnification

When negotiating a video game publishing agreement, developers often focus on the financial terms and milestone schedules. However, the warranties, representations, and indemnification clauses can be just as critical. These provisions allocate risk between the developer and publisher and determine who is responsible if legal issues arise.

While they may seem like “boilerplate” clauses, overlooking them can have serious consequences, including unlimited liability for a developer.

What are warranties and representations?

A representation is a statement of a fact made at the time of signing the contract. For example, that the developer represents that it owns all intellectual property rights to the video game.

A warranty is a promise that something is true or will remain true throughout the duration of the contract. For example, that the developer warrants that the video game does not infringe any intellectual property rights of third parties.

Together, the warranties and representations are essentially guarantees given by the developer to the publisher. 

What is the indemnification clause?

Indemnification is a clause in a video game publishing agreement where one party promises to compensate the other party for damages, losses, or legal claims that arise when a warranty or representation is breached. In practice, indemnifications are most often linked to third-party claims.

For example, if a developer guarantees that the game does not infringe on any third-party intellectual property rights, but a third party later sues the publisher for copyright infringement, the developer must cover the publisher’s damages, legal fees, and costs resulting from that claim.

Why representations, warranties and indemnification clauses matter

From the publisher’s perspective, these clauses are a safety net. Publishers do not want to be held financially liable for risks they cannot control (such as how the developer sourced assets, music, or code).

From the developer’s perspective, indemnification can be a heavy responsibility, because it often applies regardless of whether the breach was intentional or accidental. However, providing the right guarantees can also convey trust in the collaboration and avoids extensive due diligence from the publisher.

Example of representations and warranties with an indemnification clause

Below is an example of the representations, warranties and indemnification clauses in a video game publishing agreement which we have seen in practice, so that you can recognise a similar clause in your own draft:

Common examples of representations and warranties in video game publishing agreements

Most video game publishing agreements do contain (at least) the following representations and warranties:

• The video game does not infringe on any intellectual property rights.
• The video game does not contain any unacceptable content
• The video game does not include any undisclosed easter eggs
• The developer has full authority to enter into the agreement.
• The Game does not contain malware, viruses, or hidden code.
• The Game meets the agreed specifications and platform requirements.
• The Developer will comply with applicable laws.

How to review and negotiate representations, warranties & indemnification clauses

Watch out for unrealistic representations and warranties

Publishers often want developers to provide broad warranties. While some promises might sound reasonable at first, they can become problematic if they go beyond what a developer can realistically guarantee. For instance, it is nearly impossible to guarantee that a game will not have any bugs and/or defects.

Limit warranties to knowledge and control

A good way to balance interests is to limit warranties to what the developer actually knows and can control. For example, instead of warranting that “the game does not infringe any third-party rights”, you could warrant that “to the best of the developer’s knowledge, the game does not infringe any third-party rights.”

This shift in wording makes a big difference: you are no longer responsible for unknown risks outside of your reasonable control, but you still provide the publisher with legal protection if you knowingly used third-party assets without permission.

Prevent unlimited liability risk

Many indemnification clauses put the full financial risk of third-party claims on the developer. In extreme cases, this can lead to unlimited liability, which is dangerous for small studios. A single lawsuit could be financially devastating.

To manage this risk, developers should negotiate liability caps and exclusions. This way, you avoid taking on unlimited exposure while still offering the publisher a reasonable level of protection.

Do not forget the publisher’s representations and warranties

Developers are not the only ones who should provide representations and warranties. Publishers should also make certain promises. For example, that they have the right to enter into the agreement, that they will comply with platform requirements, and that their marketing activities will comply with applicable laws and will not infringe third-party rights.

Including publisher warranties creates a more balanced publishing agreement and ensures that both parties are accountable for their respective responsibilities.

Before you sign: summary and next steps

Representations, warranties, and indemnification clauses often look like boilerplate, but they have real consequences. Developers should be cautious about overpromising, negotiate fair limits to liability, and make sure publishers also share in the responsibility. With balanced terms, these clauses can provide mutual reassurance rather than one-sided risk.

If you’re unsure whether your contract exposes you to unlimited liability or unfair guarantees, it’s worth having an expert review it first.